GUANTÁNAMO BAY

FIVE YEARS LATER

Prepared by the TABLE OF CONTENTS

Summary ……………………………………………………….……………………………………………………. 1

Overview …………………………………………………………………………………………………………….. 2

Legal Timeline ………………………….…………………………………………………………………………… 4

Chart: Released Detainees More Likely to Receive Fair Treatment ……….…………………………………… 5 from Other Countries than from U.S.

Top 10 Myths About Guantánamo Bay …………………………………………………………………...………. 6 SUMMARY continued detention. As confirmed by evidence from the detainees, military personnel, and even the F.B.I., Four months after 9/11, on January 11, 2002, the many of the detainees have been tortured, abused, U.S. military flew 20 prisoners from to and humiliated at the hands of the U.S. government. the U.S. Naval Base at Guantánamo Bay, . More would soon follow, as would allegations of The International Committee of the Red Cross, the and abuse, public outcry both at home and abroad United Nations, Amnesty International, European over the mistreatment of detainees, and repeated calls officials like British Prime Minister Tony Blair and for the closure of Guantánamo. German Chancellor Angela Merkel, and other human rights groups have called for Guantánamo to be The five years since then have seen the total number closed. The U.S. government, meanwhile, has of detainees rise to more than 750—some as young as employed every possible tactic to evade judicial ten years old, and others as old as eighty—and review of its detention and interrogation practices at Guantánamo become a Kafkaesque symbol of the Guantánamo Bay. U.S. government’s deeply flawed “,” a place where the does not apply. During the past five years, the Center for Constitutional Rights has been at the forefront of the The U.S. government has twice attempted to strip legal battle for justice for Guantánamo detainees, detainees, many of whom are guilty only of being in winning landmark Supreme Court cases and the wrong place at the wrong time, of their legal right organizing hundreds of lawyers to represent the to contest their detention. Over and over again, we detainees. CCR was the first human rights have seen the U.S. government reject the claim that organization to fight for the rights of the detainees detainees have the right to , fair trials, and continues to work with organizations around the and due process of law. world to call for humane treatment and due process for those the government had branded the “worst of Prisoners being interrogated at Guantánamo have the worst,” as well as to fight for the reinstatement of been: habeas corpus and the rule of law.

Held in solitary confinement for periods exceeding a year; Deprived of sleep for days and weeks and, in at least one case, months; Exposed to prolonged temperature extremes; Beaten; Threatened with transfer to a foreign country for torture; Tortured in foreign countries or at U.S. military bases abroad before transfer to Guantánamo; Sexually abused and humiliated or threatened with rape; Deprived of medical treatment for serious conditions, or allowed treatment only on the condition that they “cooperate” with interrogators; Routinely “short-shackled” (wrists and ankles bound together and to the floor) for hours and even days during interrogation.

From the Center for Constitutional Rights’ “Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantanamo Bay, Cuba”

In fact, only 10 detainees have ever been charged with offenses, and none have been tried or found guilty. Military officials have admitted that innocent civilians have been detained at Guantánamo and that most held at the prison have little, if any, intelligence to offer. The vast majority, according to ’s own documents, have no direct ties to al Qaeda or the .

While hundreds of detainees have been released, hundreds continue to be held, most with no charges against them and no trials in their future. Flimsy evidence, if any at all, is used to justify their HISTORICAL OVERVIEW As the months passed and more news came out of Guantánamo Bay detailing the circumstances and The months following 9/11 saw Congress give treatment of the detainees, it became clear that the President Bush almost unprecedented authority to rule of law and basic respect for human rights were wage the “war on terror.” He quickly began testing absent at Guantánamo. What initially was a fight to those powers—on November 13, 2001, President guarantee that Guantánamo detainees had access to Bush announced that Taliban and al Qaeda captives due process and fair trials soon became intertwined would not be classified as prisoners of war, but as with allegations of abuse and torture. “enemy combatants,” a term recognized only by the U.S. government, and authorized their indefinite detention. As lawyers at the Center for Constitutional O.K. was 15 years old when he was captured in July Rights realized, this meant that the Third Geneva 2002. Military officials at Bagram treated him roughly, despite his young age and his poor physical condition. Convention would not be applied to detainees, and He was interrogated repeatedly by military officials, and there would be no legal guarantee of humane on many occasions was brought into the interrogation treatment for the prisoners at Guantánamo Bay. room on a stretcher. On one occasion, interrogators grabbed and pulled him, he fell and cut his left knee. On some occasions, interrogators brought barking dogs Then, on January 11, 2002, 20 detainees from the into the interrogation room while his head was covered war in Afghanistan were flown to the U.S. Naval with a bag. On other occasions, interrogators threw cold Base at Guantánamo Bay, Cuba, and housed in the water on him. They also tied his hands above the door chillingly-named Camp X-Ray, little more than a frame and made him dangle painfully for hours at a time. While his wounds were still healing, interrogators collection of outdoor wire mesh cages. made O.K. clean the floors on his hands and knees. They forced him to carry heavy buckets of water, which Quickly realizing the danger to civil liberties and the hurt his left shoulder where he had been shot. When he rule of law that Guantánamo represented, CCR, on was able to walk again, interrogators made him pick up trash, then emptied the trash bag and made him pick it February 19, 2002, filed Rasul v. Bush, a habeas up again. During the interrogation, he was not allowed petition on behalf of three detainees, Australian to use the bathroom, and was forced to urinate on citizen , and British citizens himself. and Asif Iqbal. Arguing that everyone has the right to Around March of 2003, O.K. was taken out of his cell at a fair trial and due process, CCR filed the lawsuit Camp Delta [in Guantanamo] at approximately 12:00 – during a time when dissent was effectively curtailed 1:00 a.m., and taken to an interrogation room. An by the climate of patriotism fueled by fear. interrogator told O.K. that his brother was at Guantánamo, and that he should “get ready for a miserable life.” O.K. stated that he would answer the The American public soon learned that even U.S. interrogator’s questions if they brought his brother to citizens were not immune from being sent to see him. The interrogator became extremely angry, Guantánamo or classified as “enemy combatants.” then called in military police and told them to cuff O.K. When the government found out Guantánamo to the floor. First they cuffed him with his arms in front of his legs. Later still, they forced him on his stomach, detainee was in fact a U.S. bent his knees, and cuffed his hands and feet together. citizen, they quickly transferred him out of At some point, O.K. urinated on the floor and on Guantánamo and into a jail in on himself. Military Police poured pine oil on the floor and April 5, 2002. He soon filed a writ of habeas corpus, on O.K., and then, with O.K. lying on his stomach and his hands and feet cuffed together behind him, the Hamdi v. Rumsfeld, challenging the U.S. Military Police dragged him back and forth through the government’s right to hold him indefinitely, a suit mixture of urine and pine oil on the floor. Later, O.K. that would reach the Supreme Court in 2004. On was put back in his cell, without being allowed a shower May 8, 2002, federal agents arrested U.S. citizen or change of clothes. He was not given a change of clothes for two days. Jose Padilla on U.S. soil and subsequently classified him as an “.” Padilla would only be From the Center for Constitutional Rights’ “Report on formally charged with a crime three years later, in Torture and Cruel, Inhuman, and Degrading Treatment 2005. of Prisoners at Guantanamo Bay, Cuba

As 2002 continued into 2003, CCR’s cases were denied in all the courts—on March 11, 2003, the D.C. Circuit Court of Appeals rejected CCR’s appeal In an August 1, 2002, legal memorandum, the Justice of Rasul v. Bush, concluding that detainees have no Department concluded that the U.S. government was right to challenge their imprisonment. But on permitted to techniques that are commonly November 3, 2003, the Supreme Court agreed to recognized as torture as an interrogation method. To hear Rasul, the first legal challenge to the Bush avoid U.S. and international laws prohibiting torture, Administration’s detention policies to reach the the memo sharply narrowed the definition of what highest court in the land. constitutes torture, stating that interrogators can cause severe pain before it is classified as “torture.” Bodily torture, the memo stated, “must be equivalent in Rasul and eliminate detainees’ rights to file habeas intensity to the pain accompanying serious physical corpus petitions. injury, such as organ failure, impairment of bodily function, or even death,” leaving a host of tactics that The government’s attempt to circumvent the would not now technically be classified as torture. Supreme Court rulings with the DTA, CSRT’s, and For psychological methods to rise to the level of military commissions was dealt a setback on June mental torture, the psychological harm must last 29, 2006, when the Supreme Court ruled in Hamdan “months or even years.” v. Rumsfeld that those military commissions violate U.S. and international law. Accepting the arguments Along with memos greenlighting “torture-lite” put forth in amicus briefs by the Center for interrogation methods, allegations of prisoner abuse Constitutional Rights, Common Article 3 of the began to come to light. On March 9, 2004, three Geneva Conventions, the Justices stated, did apply to British detainees, two of whom were petitioners in Guantánamo detainees. Rasul v. Bush, were released from Guantánamo and wrote a 150-page report that described in detail the Again attempting to undo a Supreme Court decision abuse and humiliation they and their fellow detainees favorable to detainees, the Bush administration had suffered at the hands of prison guards at the base. Congress pass the Military Commissions Act (MCA) This, in conjunction with the torture that occurred at in September and signed it into law on October 17, Abu Ghraib prison in , began to paint a picture of 2006. The MCA attempts to corrode habeas corpus systemic detainee abuse. even further by proclaiming that non-citizens anywhere in the world, including legal immigrants Meanwhile, the legal battle continued. On June 28, detained in the U.S., can be picked up and held 2004, CCR won a historic victory before the Supreme indefinitely without charge or a fair hearing to Court, as the justices ruled 6-3 in Rasul v. Bush that challenge their detention. Nor do people have to be detainees can legally challenge their detention in labeled an enemy combatant for them to be held, they federal courts. The same day, the justices ruled in may merely be “awaiting” a designation.. Hamdi v. Rumsfeld that U.S. citizens cannot be held without due process of law. Five years after the first detainees were sent to Guantánamo, CCR continues to lead the movement Following the Supreme Court rulings, CCR quickly for reinstatement of the rule of law and against organized a network of hundreds of attorneys to torture at Guantánamo, at Bagram Airbase in represent other Guantánamo detainees in habeas Afghanistan, at Abu Ghraib and elsewhere in Iraq proceedings. Habeas petitions were soon filed on and around the world.. behalf of many detainees, and lawyers began, finally, to meet with their clients at Guantánamo Bay. On Cases such as Al Odah v. United States are August 30, 2004, the Center for Constitutional challenging the continuing denial of habeas corpus to Rights’ Gitanjali Gutierrez became the first civilian Guantánamo detainees and contesting the Military lawyer allowed into Guantánamo. Commissions Act of 2006.

In response to the Rasul and Hamdi rulings, in the summer of 2004 the Pentagon announced that it would create Combatant Status Review Tribunals (CSRT’s) to determine whether detainees are in fact enemy combatants or continue to pose a threat to the U.S.. Many lawyers and human rights activists have asserted that the CSRT’s are a sham proceeding, flawed by their very nature–the detainees are not permitted to have their lawyers present and do not have access to the evidence being used against them, some of which may have been obtained through torture –and designed in practice and effect only to justify the continuing indefinite detention of most detainees.

The Bush Administration continued its attempts to erode detainees’ rights in Congress. Signed into law by President Bush on December 30, 2005, the (DTA) purportedly protected detainees from abuse, but also attempted to undo LEGAL TIMELINE

Congress approves a resolution giving President Bush authority to use “all necessary Sept. 18, 2001

1 and appropriate force” against al Qaeda forces 0 0

2 President Bush issues an executive order authorizing detention of “enemy combatant” Nov. 13, 2001 non-US citizens 20 prisoners sent to Guantánamo Bay from Afghanistan. They are housed outdoors in Jan. 11, 2002 wire cages. Vice President calls the detainees “the worst of a very bad lot. They are Jan. 27, 2002 very dangerous. They are devoted to killing millions of Americans.” CCR files Rasul v. Bush, a habeas petition, in D.C. District Court on behalf of David Feb. 19, 2002

2 Hicks, Shafiq Rasul and Asif Iqbal 0 0

2 In the first of many organized protests, detainees go on hunger strike to protest a rule Feb. 27, 2002 against wearing turbans Detainee Yaser Esam Hamdi is discovered to be a U.S. citizen and moved from Apr. 5, 2002 Guantánamo to a military prison in South Carolina

June 11, 2002 Yaser Esam Hamdi files a writ of habeas corpus challenging his detention

D.C. Circuit Court of Appeals rejects CCR’s appeal in Rasul v. Bush, ruling that Mar.11, 2003

3 detainees have no legal rights in the United States 0 0 2 Nov. 10, 2003 Supreme Court agrees to hear Rasul v. Bush

Shafiq Rasul and Asif Iqbal, two of the petitioners in Rasul v. Bush, are sent back to Mar. 9, 2004 Britain and subsequently allege they were tortured and abused while detained Supreme Court rules 6-3 in Rasul v. Bush that detainees can challenge their detention in June 28, 2004 federal courts. On the same day, Supreme Court rules in Hamdi v. Rumsfeld that the 4

0 government cannot detain U.S. citizens without due process of law 0 2 Pentagon creates Combat Status Review Tribunals (CSRT’s) to review detainees’ July 7, 2004 “enemy combatant” status CCR attorney Gitanjali Gutierrez is the first civilian lawyer to meet detainees at Aug. 30, 2004 Guantánamo Senate votes 49-42 to approve the Detainee Treatment Act (DTA), which attempts to Nov. 10, 2005

5 strip detainees of the right to file habeas corpus petitions 0 0 2 Dec. 30, 2005 DTA is signed into law by President Bush

June 10, 2006 Three detainees die at Guantanamo

Supreme Court rules in Hamdan v. Rumsfeld that military commissions violate U.S. and June 29, 2006 international law, and that Common Article 3 of the Geneva Conventions applies to the

6 detainees 0 0

2 President Bush announces that 14 detainees from C.I.A. secret black sites have been Sept. 6, 2006 transferred to Guantánamo President Bush signs the Military Commissions Act (MCA) into law. The MCA Oct. 17, 2006 attempts to make possible the permanent detention and torture of even legal U.S. residents, as long as they are classified as “enemy combatants” RELEASED DETAINEES MORE LIKELY TO RECEIVE FAIR TREATMENT FROM OTHER COUNTRIES THAN FROM U.S.

Background The past five years have seen the Bush administration make every attempt to circumvent and thwart the principle that all people—including Guantánamo detainees—deserve fair trials and due process of law and have seen the U.S. government condone the use of torture as an interrogation method.

A comparison of the treatment of former prisoners during their detainment versus the treatment they have been given upon return to their home countries shows that the detainees often receive fairer treatment and, in many instances, more due process at home than at Guantánamo. At the same time, the U.S. has sent people back to countries where they face torture and persecution.

Treatment Treatment Released Home By the received at Detainees Receive in Examples Country Numbers Guantánamo Home Country

Saudi foreign minister Prince Upon their arrival in Saudi Saud al-Faisal has said, “They Arabia, they are allowed to will be incarcerated and 136 detainees see their families, and they checked, and we’ll see what the since 2002 Saudi receive medical care. proof against them is. If the 53 have been They receive trials. proof against them justifies trial, Arabia released If convicted, they complete they will be put on trial. If they While imprisoned at their sentences and are then are proved guilty, they will be Guantánamo Bay, released.1 incarcerated. If they are proved Cuba, many of the innocent, they will be let out.”2 detainees are:

never formally They are charged with charged with a crimes by the Kuwaiti Nasser Al-Mutairi was released crime; government. from Guantánamo in early 2005 never given a Six of the eight were 3 and upon his return to Kuwait fair hearing 12 detainees released on bail. The two was charged with carrying out before a neutral since 2002 most recently released hostile acts against a friendly decisionmaker; 8 have been detainees remain in jail Kuwait nation. He was first acquitted, a physically and released pending a decision on decision which the government mentally charges being filed. later appealed, and then was abused and They receive trials in Kuwaiti finally acquitted by Kuwait’s tortured; courts. 4 highest court. held in solitary If they are acquitted, they confinement; are released. often denied The Bahraini government needed medical has made clear that if the treatment; and U.S. government provides The four released detainees prevented from any evidence that Bahraini have lived in freedom with their practicing their 6 detainees detainees committed crimes, families since returning to religion. since 2002 such evidence would be Bahrain. Each of them is 4 have been evaluated to determine attempting to rebuild his life: for Bahrain released whether charges would be example, three have returned to brought under Bahraini law. college; two have gotten All of the former detainees married; one has had a child; were released immediately and one has reopened his after returning to Bahrain business. and not charged with any crime.

1 “Saudi frees 18 former Guantánamo detainees,” The Washington Post, December 26, 2006 2 “U.S. to Turn Over 16 Saudis From Guantánamo to Riyadh,” The New York Times, May 18, 2006 3 “5 from Guantánamo Get Bail in Kuwait,” The New York Times, March 6, 2006 4 “Court acquits former Guantánamo prisoner,” Kuwait Times, July 25, 2005 TOP 10 MYTHS ABOUT GUANTÁNAMO BAY, CUBA

Myth Fact

A February 2006 report by Seton Hall professor Mark Denbeaux and attorney Joshua Denbeaux found that 55 percent of the detainees were Detainees are the “worst of the worst” determined by the government to have committed no hostile acts against 1 terrorist members of al Qaeda. the United States or its coalition allies. The report also stated that only 8 percent of the detainees were classified by the government as al Qaeda fighters. 5

They have given the government valuable Guantánamo officials have admitted that less than one in four detainees 2 intelligence. has any intelligence value.

Their detainment contributes to national Anger abroad over treatment of detainees is high and has led to 3 security. heightened anti-American sentiment and fewer intelligence contacts.6

Numerous reports have found that U.S. government officials at Guantánamo use interrogation tactics that are tantamount to torture. They’re not tortured or abused and are

4 These include methods such as physical beatings; extreme temperature treated humanely. changes; prolonged stress positions; sleep deprivation; withholding medical care; sexual abuse; and religious and cultural abuse.7 The rule of law exists at Guantánamo. Combatant Status Review Tribunals and CSRT’s in essence are a sham—detainees cannot have lawyers present

5 Annual Review Boards ensure that detainees and do not have access to the evidence being used against them, are imprisoned only if they are security evidence which may have been obtained by torture. threats.

Common Article 3 of the Geneva Conventions prohibits “the passing of The military commissions at Guantánamo sentences and the carrying out of executions without previous judgment

6 would provide more fairness than is required pronounced by a regularly constituted court affording all the judicial under the Geneva Conventions. guarantees which are recognized as indispensable by civilized peoples.”

This is true for only a handful of prisoners, while the vast majority of

7 Living conditions at Guantánamo are humane 8 detainees live in stark, mind-numbing conditions.

Serious medical conditions often go untreated, and detainees who have Detainees receive good medical care at

8 been physically abused sometimes go days without treatment. In Guantánamo. addition, the mental health of many detainees is precarious.

There has been no imam at prayer since the removal of Chaplin James The U.S. honors the detainees’ rights to Yee. The detainees are also frequently provoked during prayer times. In 9 practice their religion. addition, religious abuse is an express interrogation tactic approved by the Defense Secretary.

The U.S. wants to transfer detainees to the Countries are willing to accept detainees but many are not willing to 0 custody of other countries, but no country will

1 unlawfully detain them, as the U.S. is requesting they do. take them.

5 Denbeaux, Mark and Denbeaux, Joshua. “Report on Guantánamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data,” February 2006 6 “Afghans Protest Against U.S. Actions at Guantánamo Bay Prison,” http://www.pbs.org/newshour/bb/asia/jan-june05/afghanistan_5-13.html, May 13, 2005 7 Center for Constitutional Rights. “Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba.” July 2006 8 “Toilet Paper, Sheets Rationed at Guantánamo Bay,” http://www.abcnews.go.com/WNT/story?id=2125839&page=1, June 27, 2006